TMI Blog2012 (10) TMI 694X X X X Extracts X X X X X X X X Extracts X X X X ..... de name whether registered or not. Thus, reference to brand name or trade name in Clause-4 of the Notification & the facts of the case of Jepika Paints [2008 (1) TMI 359 - HIGH COURT MADHYA PRADESH] is not to the registered trade name or brand name. Under these circumstances, and in view of the specific provisions contained in the exemption notification, the Tribunal erred in holding that the appellants were not entitled to be considered for grant of registration for exemption for period commencing from 19-4-1995 and ending on 18-4-1996 - appellant herein cannot be denied the benefit of SSI notification on the ground that the brand Que is not registered in their name - in favour of assessee only to the extent that the Tribunal shall now con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fragmented the value of clearances and incorrectly availed the benefit of concessional rate in their new unit from the first clearance value i.e. the clearance value in chronological order upto the aggregate value of Rs.75 lakhs as provided in Notification No.1/1993, dt.28.02.1993 as amended, as the value of goods Rs.63,40,830/- cleared by their old unit during the period from 01.04.1996 to 31.08.1996 at concessional rate under Notification No.1/1993 have to be clubbed to the value of goods manufactured and cleared by the said appellants while computing the aggregate value of clearances upto Rs.75 lakhs and the appellants after obtaining Central Excise registration w.e.f. 05.06.1996, have manufactured and cleared the dutiable medicaments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 43) ELT 693 (Tri-Bang), Coimbatore Engineering Works 2009 (239) ELT 366 (Tri-Chennai), has laid down a proposition as to the effect that once there is an allegation of clubbing of clearances, Show Cause Notices should be issued to both the units while in this case, Show Cause Notice is issued to only the appellant. He would also rely upon the decision of Hon'ble High Court of Madhya Pradesh in the case of Jepika Paints 2010 (18) STR 380 (M.P.), and submit that the said judgment talks about the assignment of trade name, was not covered under Notification No.1/1993. He would also take us through the SSI Notification No.1/1993-C.E., dt.28.02.1993. 6. Ld.D.R., while reiterating the findings of the lower authorities, would state that the brand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Harma, 131/2, GIDC, Wadhwan City 363 030 lift their right of trade mark Que and other brand names, as shown in schedule attached herewith. By this agreement, assignor M/s Que Pharma Wadhwan agrees in toto that now onwards M/s Que Pharma has no right, title or interest in the trade mark Que and other brand names and agrees that M/s Que Pharma Private Limited, Plot No.2101-A B, 2122, 2123, 2124, Phase IV, GIDC, Wadhwan City would become absolute owner for trade mark Que and other brand names mentioned in the schedule, w.e.f. 02.09.1996. 10. On reading of the said clause of the assignment deed, it makes it clear that the partnership firm M/s Que Pharma agreed that from 02.09.1996, they have no right, title and interest in the trade mark Qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s registered or of some only of those goods. 12. According to this provision the registered trade mark is assignable and transmissible, whether with or without the sale of the business concerned and in respect of either or all the goods in respect of which trade mark is registered or of some of these goods. It has not been disputed before us that the goods manufactured by the appellants to whom the trade mark has been assigned are not the same as the merchandise of the Proprietor. Attention was also invited by learned Solicitor General to Section 44 with regard to necessity of registration of such assignments. Section 44 of the Trade and Merchandise Marks Act, 1958 makes provision as under:- 44. Registration of assignments and transm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment having not been found necessary by the Supreme Court in the above decision and the Revenue having acted upon the agreement in question for the period subsequent to 19-4-1996, we are of the considered view that the Department cannot take the stance contrary to its own action and conclusion. 14. Another contention which was raised by the learned Assistant Solicitor General is that in the statement recorded by the Excise Department, the Proprietor of the firm did not point out that the said mark was assigned to them by the Proprietor. In the Notification itself, explanation-IX mentions that brand name or trade shall mean a brand name or trade name whether registered or not. Thus, reference to brand name or trade name in Clause-4 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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